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PART III.: STATE OF THE PACKING SYSTEM, ANNO 1809. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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STATE OF THE PACKING SYSTEM, ANNO 1809.
COMMONS’ DEBATE, 24th APRIL 1809. PACKING AND CUTTING.
Abuses touched upon—Packing and Cutting.
The 24th of April 1809 forms a new era in the history of this art.
Of the state of this branch of business, a corner is now unrolled before St. Stephen:—the eyes of the saint, as in these cases must sometimes happen, especially if the cry be loud and troublesome, half open themselves to the abuse: but then immediately, as usual, close upon it.
Up stands Mr. Whitbread, and more or less light is thrown upon parts, or supposed parts, of judicial practice:—
1. Package of jurors, viz. in the offices which we have seen established for that purpose.
2. Bribery of do, doubled: double guineas substituted to single ones.
3. Unobsequious jurors dropped; or, in the fashionable and familiar phrase, cut.
4. Where, under the name of the Crown, the firm of Judge and Co. is party, double fees to Judge and Co.—at whose expense need not be said.
Package—a complex process, in which, properly speaking, the operation of cutting is included—this, being the very thing in question, will, together with cutting, afford two sections to this present chapter: double feeing—an operation in some respects included under package, in others distinct from it, but in all respects connected with it, claims a chapter to itself.
On this occasion, amidst the uncertainties to which newspaper-reporting is liable, one thing seems pretty clear, viz. that, in respect of depth and extent, the nature of the mischief was misconceived:—misconceived and under-rated by the honourable gentleman, by whose public spirit the matter was thus brought forward:—“That the master of the crown-office should have in his discretion the nomination of juries,”—this is what to him appeared—as well it might appear—“a great hardship.” Of the state of things thus spoken of, the description thus given is thus far correct. But when the mode in which the effect is brought about comes to be spoken of, there it is that the description fails: “Of the persons summoned on the pannel, such names passed over as he thinks fit, without calling them on their fines, upon the mere plea that they could not attend, and retaining such names as he thought fit. . . . .”* To apply a detailed correction to the several mistakes contained in this part of the statement, would, after what has been said in the two former parts of this work, be a useless operation: the general result is clear enough; viz. that it is by a fraudulent contrivance, and that such a one as requires to be renewed on each individual occasion—by irregular practice in fraud of the law, and not by the law itself, as constituted by the avowed and regular practice of judges—that the “nomination” and nullification of these supposed and pretended checks upon the despotism of judges is effected.
Of these errors the origin appears sufficiently obvious. Though in several points not conformable to the view given of the case by Sir Richard Phillips, there remains conformity enough to render it probable, that it is from his representation of the matter, as given in his book, that that of the honourable gentleman was taken. I mean the “passing over”—and “upon the mere plea that they could not attend”—and so forth. By this the conception conveyed (we see) is—that, taken in its totality, the gross list comes into the master’s hands from some other quarter: and that all that it is in his power to do is—to cause to be discarded out of it this or that individual; and that even that cannot be done in any case, without a fresh as well as false pretence: whereas, as we have seen over and over again, the truth is—that, of the persons whose names are put upon this gross list, every individual, without exception, is constantly and regularly chosen by him, and that if, for ridding it of this or that obnoxious individual, any such pretence should happen to be necessary, it is not by him, by that officer, who is regular course nominates whom he pleases, that any such falsehood need be, or indeed could consistently be, averred.
As to Sir Richard Phillips, happily for the public he neither was, nor ever had been, a lawyer: on the particular occasion in question, he plunged not—time would not have suffered him to have plunged—into any such fœtid mass of dead letter, as the labyrinth composed of the books of practice. He did—what in his place every non-lawyer would have felt the necessity of doing—he betook himself to the living oracles of the law, such as were within his reach; and what their responses were has been seen in another place: the point here in question is of the number of those which may there be seen involved by them in some of their gilded clouds.
To what purpose these two paragraphs? to serve as a critique upon a newspaper?—No: but to show that the real complexion of the ulcer is far more angry than that which it then presented to the eye of the honourable gentleman: that the real depth of it had not then been sounded by him: and that it continues to call, and with increased energy, for the renewed and more serious exertions of his healing, but in the first place of his probing, hand.
Had it not been for irregularities, as we have seen—some but supposed, others, as we shall see, real—the subject, as far as upon the face of this report it appears, would never have received a visit from those experienced eyes, which reflect so much useful light on every subject on which they fix. For this, wherever law is concerned, is the general error: ascribing whatever is amiss—not to regular practice, but to irregularities: not to the system, but to A or B, to whom on this or that occasion it happens to be acting under it. This is the grand error of errors—supposing regular practice to have had not only justice, but justice alone, for its object; whereas it never has had justice for any part of its object, nor, in the nature of men and things, circumstanced as judges have been, ever could have had.
On the subject of cutting and being cut, up rises Mr. Marryat, and speaks of one person, viz. himself, to whom, after verdicts given against the crown, no such accident had happened; and there the evidence, or at least the report, as above given of it, stops.* But, stopping there, it proves nothing. It has already been stated (Part I. Chap. IV. §4,) that verdicts after verdicts may be given against the crown, and to every officer that ever calls himself the crown, the event of the cause be, personally speaking, a matter of indifference. On a question of revenue, where is the chancellor of the exchequer—where is the solicitor of the treasury, customs, excise, stamps, assessed taxes, or any other board, who, any more that the honourable gentleman himself, would wish for a verdict against evidence?
Up already had arisen Mr. Attorney-general: and here, in the person of this great law-officer, may be seen the prudence of the serpent hiding itself under the simplicity of the dove:—“With respect to the partial summoning of jurors, as he himself did not summon them, he would not” (says the report) “undertake to say anything of the fact from his own knowledge.” As to summoning, that must have been the mistake of the reporter: summoning could never have been the word of the great law-officer. As to great law-officers, what may happen to their science is—as to mere matters of fact, to put on the mask of ignorance: what never happens to it, is—to misapply law words. Nominating is the word, as well as the practice, here: and to the great law-officer in question, most assuredly it never had happened to nominate, any more than summon, a single juror in the whole course of his life. But, of the seven offices belonging to the three courts, there is not one but what has its officer (already designated so often by the name of the master packer,) by whom this nomination, as so often mentioned, is regularly and avowedly performed: nor is there more than one, if so much as one there be, that has not its book or books of practice, in which this nomination is regularly mentioned as being so performed.
If the practice of the courts in which they practise, and the books in which that practice is delineated, be to such a degree a secret to great law-officers, can it be wondered that they should be equally so to lay-gents, such as sheriffs and members of parliament?
So much for ignorance: the quality of the person considered, I should have said nescience: nescience, the cause or accompaniment of so amiable a quality as simplicity. We come now to confidence, the result and fruit of it.
“But he was confident” (continues the reporter,) “that any officer of the court, who would venture on such a practice, would certainly lose his place.” Thus far the great law-officer.
For my part, the confidence of which my ignorance has been productive, is as strong as his can possibly have been: it is, however, of a nature exactly opposite. In each of the seven offices there is but one officer, by whom (unless it be, as we have seen, by his deputy, (See Part I. Ch. VIII. p. 101,) jurors are nominated;—(I should have said, or are supposed to be nominated;) and he (as we have seen) is the officer, who, by whatever other titles designated to other purposes, is to this purpose commonly styled the master. But, were there a hundred of them, there is not one, who, for any such practice as the practice here, though improperly, designated under the name of “a partial summoning”—say partial nomination—of jurors, could by any possibility be made to “lose his place.” The nature of the case does not admit of it: the very nature of the case—unless any such odd accident should happen to the officer as that of having an Italian epigram, ready cocked, which he wants to bring down a reformer with—the very nature of the case, as we have seen, excludes all evidence. Stiles, Esquire, for example, is among those nominated by the master in Easter term: said Esquire is not among those nominated by said master in Trinity term. Make what addition you please to the number of terms, during which poor Mr. Stiles sees himself not nominated,—what is there in all this to make the master, or anybody else, “lose his place?” Not that, if the place could be lost, it would be any such great person as a master—it would be (as we have seen) some scape-goat or other in the shape of a clerk, that would be sacrificed upon the altar of official prudence.
No:—this is the grand use and exquisite contrivance of corruption in this shape: viz. that, be it ever so corrupt, it is impossible to punish it—aye, or so much as to point suspicion to it. Pleasant conceit indeed! A master lose his place! In any court of common law, from the days of Lord Coke—aye, or of “the English Justinian,” Edward the First—did the great law-officer ever hear of so much as a single case, in which, for mal-practice, in this or any other shape, any such personage as a master ever “lost his place?”—did he ever hear of so much as the rumour of any such case, to form a ground, or so much as a colour, for such confidence?
No: this is not the way that alma mater lex deals with her own children. Ah! fie upon it, darling! Dear child, you must not do so any more! Do what mischief they will, this is the very worst they ever hear from her, if on any such occasion, even in an age, or any number of ages, it ever happens to them to hear anything. Let him look to the statute of Hen. VI., 10 Hen. VI. c. 4, and see 32 Hen. VIII. c. 30, 2 and 3 Ed. VI. c. 32, and 18 El. c. 14. Masters, and their brother officers, with the assistance of feigned plaintiffs of their own feigning, outlawing men by wholesale—taking all this trouble, and to no other purpose than that of seizing their estates, and distributing the produce in the shape of rewards for merit: for learned merit, displayed in these same offices by these same acts. Parliament takes up the matter, and what does it? It passes an act, saying to all these learned persons—“Go and do so no more.”
A master lose his place indeed! What! a place that he had purchased—purchased outright—of a chief judge! What, if such a thing were to happen, would be the worth of any of these masters’ places, not to speak of judges’? Lord Arden, the Earl of Buckinghamshire, the Earl of Hardwicke, Lord Kenyon, Sir William Scott, Mr. Perceval, Lord Erskine, Lord Redesdale, the pair of Honourable Knoxes, the pair of Lord Seymours, Lord Manners, Lord Eldon, and above all Lords, Lord Ellenborough—could it rationally be supposed, that these or any other illustrious persons concerned, whether in the character either of incumbents or of patrons, past, present, or future contingent, in the security of official situations, would suffer, especially if non-feasance were to be taken as a cause of forfeiture, any such injustice to take place? Where then would be their Lordships’ plighted faith—the virtually and virtuously plighted faith: plighted by learned Lordships to fair purchasers?
DOUBLE-FEE ABUSE, PLAIN AND EMBROIDERED.
Ground and Embroidery explained.
The distinction requires explanation; and explanation shall be given to it.
Double-fee abuse plain—(or, as but for the apparent contradiction, it might have been called, simple)—mere waste of public money—nothing worse.
Embroidery to the abuse, corruption of jurors, and contempt of parliament:—in a particular case, the wasted money, the second of two guineas, receiving so particular an application as to operate, in the character of a portion of the matter of corruption, upon a certain class of jurors: and this in defiance of an act of parliament, viz. of a clause (24 Geo. II. c. 18, § 2) made for the express purpose of fixing upon one guinea—and that not as the regular fee, but as the very greatest fee, that, by jurors of that description, shall, in any case, be received.*
From the several crown solicitors, attached to the several boards, double-fees to the law officers: viz. to the officers in the several offices belonging to the several courts of justice which they have to deal with:—judges, in their own persons, included or not included; in the persons of their officers, whose fees they pocket, or derive a profit from in other shapes, included beyond doubt. And here we see the plain and simple abuse.
From the same hands, to each special juryman, where the verdict in which he has concurred has been in favour of the crown, an extra guinea: where it has been in favour of the party, no more than the one guinea: the extra guinea being given in the teeth of the act, which forbids the giving more than one: and here we see, combined in one rich mass of embroidery, the corruption applied to jurors, and the contempt put upon parliament.
Double-fee Abuse, plain:—mere Waste.
But for the embroidery of which it forms the ground, and for the explanation of which the mention of it is necessary, the plain abuse—the mere waste of public money—would scarce be deemed worth a word or a thought anywhere: nor indeed would it be in its place here.
As to our great law-officer, whom we shall presently behold breaking out into a burst of “virtuous indignation, rising even to abhorrence,” he had none to spare for a practice so excusable, or rather so meritorious, as that of applying double-fees in the shape of rewards of merit, to merit personified in the persons of law officers. To these law-officers—officers, the profits of whose offices find their way in so ample a proportion into the pockets of noble and learned tenants for life, whose remaindermen are great law-officers. To this charge we have nothing but his silence; nor need anything more be desired considering the admission it involves.
Thus much, then, is established: viz. that it is become regular practice for the Lords of the Treasury, in every cause instituted by a crown solicitor under their direction, to give out of the taxes to every law-officer twice as much as according to a rate settled by those whose interest it was to raise it as high as possible—twice as much as, even to an estimate thus exaggerated, his services are worth: including, in every instance of an office executed by deputy, the fee of the principal, by whom the reward is pocketed, without the expense of service.
A list of the law-offices and law-officers thus remunerated would, in one way or other, be instructive.
The admission might have been as express as words could make it, for any thing that any body could have had to fear from it.
When a tax has been called a tax, John Bull has now and then been heard to grumble. Call the tax a fee, he is satisfied: so as the contribution be but imposed by the men by whom it is pocketed, pocketed by the men by whom it is imposed, Blackstone’s motto is John Bull’s—“every thing is as it should be.” But, if the imposers are judges, and the persons on whom it is imposed are those children of affliction called suitors—patients with emptiness in their pockets, and perpetual blisters on their mind—then it is that he is not barely contented, he is delighted: he cries “litigation is checked:” some men not being able, others not willing, to see, that in this way, wherever there exists a man, rich as well as wicked enough to purchase the power of oppression thus offered him for sale, it is only the honest and injured litigant, or he who, if the ability were left him, would be litigant, that is thus checked, and that the dishonest litigant is instigated, supported, armed, by this most mischievous of all taxes; every fee exacted from the other side being an instrument of oppression put into his hands.
Embroidery—Corruption of Jurors, Contempt of Parliament.
We now come to the abuse in which the indignation of the great law-officer saw its proper and safe mark: an abuse of former times, supposed to have vanished with the times.
“Further,” says the report, speaking of Mr. Whitbread,—“further he was informed, that when a special jury found a verdict for the crown, it was usual to pay each man two guineas; where their verdict was against the crown, they received but one guinea per man.” Here we see the charge. Come we now to the great law-officer, and his answer:
“Mr. Attorney-general,” says the report, “in reference to Mr. Whitbread’s assertion, respecting the two guineas given to special jurymen in cases of verdict against the crown . . . . [and the usage of discontinuing to summon special jurors who should once give a verdict against the crown] utterly denied the existence of such practices in any of the courts within his memory.”
So far the great law-officer. As to the passage included in brackets, it is thus distinguished, on the presumption that, so far as concerns this practice, the supposition of an utter denial must, for the reasons already given (Chap. I. § 3,) have been a mistake.
“He believes, indeed,” continues the report, “the former practice did sometimes take place, many years since, in the court of Exchequer; but had never occurred for a great number of years, and it was a practice which he abhorred, as disgraceful to the administration of justice.”
And so there was really a time when corruption in this shape was in use? And this corruption applied to the very class of persons—to the very class of jurors—which there has been such abundant occasion here to speak of: the very jurors concerned, “deeply concerned” in “the guinea-trade?” And the corruption had not, as in the case of double fees to law-officers (meaning, we may presume, all the law-officers without distinction, and upon all occasions) the praise of regularity for a cover to it? No:—it was given to them or kept back from them, according as they had behaved—according as they had or had not earned it.
As to the court in which this “abhorred” and “disgraceful practice” was so recently in use, it is the court of Exchequer—that very court, in which, in the opinion of the pre-eminently learned manager himself, things go on (as we have seen) so well—so “well”—that the idea of making them go on “better” is treated by him as something worse than needless. It is the very court in which recruits for this service are received and trained, and their “characters” if not put on record, had in “remembrance” at least, for other services.
And this practice, thus “abhorred” by the Attorney-general as “disgraceful to the administration of justice,” how came it in the court of Exchequer, or in any court calling itself a court of justice, ever, and so recently too, to have place? And supposing it not to have place to-day, is there anything, and what, to prevent its having place again to-morrow? Whatsoever the causes may be, is there any thing unreasonable in the supposition, that the same causes may at any time be productive of the same effects? Not that any such renewal presents itself as a very probable occurrence: for the grand object, viz. dependence—complete and absolute dependence—being by this time so effectually secured, as it appears to have been, and in so snug and quiet a way, corruption in any such barefaced shape would be altogether needless; and the danger of and from exposure, remote as it would however be, is more than, by learned prudence, would, when unsweetened by any ulterior advantage, be incurred.
Thus much for the corruption. But in the corruption, bad as it is, we do not by any means see the worst part of the business.
The worst part of the business is the contempt—the open contempt put upon parliament: disobedience, such as it is impossible should not have been wilful, manifested as towards one of its recent laws. Here we see the axe laid to the very root of government: and by what hands? Not by jacobins and levellers—not by men who meet at taverns, and get up upon tables; but by the very husbandmen themselves—the very nursery-men, by whom Mr. Reeves’s tree—(the tree that was so near falling upon his head, and without falling on it prepared it for so many good plaisters)—the very nursery-men by whom that nutritious and umbrageous sugar-tree ought to have been nursed, and who are so well paid for nursing it.
But of this most serious state offence—this dissolution-threatening offence—in comparison of which so ordinary and regular an offence as corruption shews, in the eye of a really loyal subject, but as a peccadillo, more will be said in another place. (See Part IV. Chap. III.) Be it meantime remembered, that the fact is established.
Other facts, not altogether devoid of importance, remain to be affirmed or disaffirmed by inquiry and evidence.
By what hand was it that the bribery guinea—the additional and prohibited guinea—was put into the ready hand of the Exchequer guinea-men, in despite of the statute? This is a question, the answer to which, but for form’s sake, needs no evidence. That of the solicitor, of the board whichever it was, under the orders of which the prosecution was, in each instance, ordered.
Two other questions:—The master packer, and the master packer’s master—the deputy remembrancer, and the Lord Chief Baron—were they respectively apprized of it?
At what time was it that this “abhorred” practice did sometimes take place—how many were these “many years since” it was known to do so?
In whose chief baronship was it? In that of Eyre—in that of Skinner—in that of Smyth?—or in any part of the thirty years presidency of the old attorney, knighted and made honest—as honest as to an English judge it is possible to be—by the title of Sir Thomas Parker? Or was it at any time under the presidency of the present Lord Chief Baron, of whose services in that high station the country has had the benefit now for above these sixteen years:* if yes, whether it has been with his privity that any particular individual instance of this practice has taken place, and whether this has been among the means employed by him for the attainment of the object so effectually accomplished, and so solicitously defended?†
These are among the “secrets” which may perhaps present themselves as “worth knowing,” whensoever Mr. Whitbread, refreshed by a summer recess, shall feel himself sufficiently refreshed to return to the charge; to return to the charge, and by one pull more—one pull, sufficient in length as well as strength, drag them completely and effectually out of the den of Cacus.
Should it ever happen to the great law-officer, on any future occasion to get up, and come out with a speech of a mixed nature such as the above, composed of part argument, and part evidence, Mr. Whitbread, or whosoever on any such occasion may occupy his place, will perceive, I am inclined to think, the use and propriety of decomposing such speech, and resolving it into those its component elements. As to the argument, it need not give him much trouble: that may be left to answer itself. But the evidence is quite another thing: here he will see the use and necessity of that useful operation called cross-examination. I don’t mean, that even upon the great law-officer himself, it should be performed in his own mode: of that it would surely be better to leave the monopoly in his own hands. I don’t mean, that he should be called “the greatest fool that ever walked over earth” with or “without a keeper.”‡ I don’t mean, that he should be examined for no other purpose than to expose to contempt the witness, nor with any other effect than to expose to the same fate the examiner and the judge: the examiner who makes such examinations, and the judge who suffers them. What I mean is, that he should be examined—cross-examined—in whatever mode may happen to be best adapted to the getting out the truth:—which surely will be a very different mode.
[* ]Words of the report of that part of Mr. Whitbread’s speech, as given in the Times newspaper of the 24th of April 1809:—“He thought it, for instance, a great hardship, that the master of the crown-office should have in his discretion the nomination of juries, by passing over the names of such persons summoned on the pannel as he thought fit, without calling them on their fines, upon the mere plea that they could not attend, and retaining such names as he thought fit.”
[* ]Mr. Whitbread, as per Times.] “Another practice he understood to prevail was—that special jurymen, who had been summoned over and over again, if ever they found a verdict against the crown, it somehow or other, happened, they were never summoned afterwards.
[* ]Simple dissipation abuse.—Mr. Whitbread, as per Times.] “Another practice he understood to be uniform with courts; namely, that the crown always paid to the officers double fees.”
[* ]Ever since 12th February 1793.
[† ]Turn to Palmer on Costs, pp. 175, 180. In a bill of costs, exhibited throughout in the character of a real bill—not a feigned exemplification of a bill—name of the cause, The King against W., scire facias in the Petty Bag (common-law side) in the Court of Chancery, may be seen a charge of £25 : 4s. This makes exactly the two guineas a-piece, stated as having been given to the special jury. Mr. Law (now Lord Ellenborough) is stated as having been one of the counsel in the cause: the others being Mr. Erskine (now Lord Erskine) Mr. Mingay, and Mr. Garrow. Mr. Law, as being of the special pleading class, may be seen to have been more frequently consulted with than any of those other learned persons. This bill of costs having, for the purpose of taxation, passed of course under the review of the master (the master packer,) here we see a particular example of the open contempt put upon the act above mentioned—(24 Geo. II. c. 18, § 2)—by which the giving or taking more than one guinea stands prohibited, as we have seen, in the most pointed terms. Of the individual instance of contempt thus accidentally laid open to view, the date is in the year 1785.
[‡ ]“Attorney-general . . . . First we have Sir Richard Phillips, who has given us evidence of his being either one of the greatest fools that ever lived under the sun, or that he is not to be credited on his oath. I say it appears from his own testimony, either that he has given us false evidence, or that he is the greatest fool that ever walked upon the face of the earth without a guide.